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The Evolution of American Federalism in Three State Supreme Courts, 87 Marq

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The Evolution of American Federalism in Three State Supreme Courts, 87 Marq Marquette Law Review Volume 87 Article 2 Issue 2 Winter 2003 "This New and Beautiful Organism": The volutE ion of American Federalism in Three State Supreme Courts Joseph A. Ranney Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Joseph A. Ranney, "This New and Beautiful Organism": The Evolution of American Federalism in Three State Supreme Courts, 87 Marq. L. Rev. (2003). Available at: http://scholarship.law.marquette.edu/mulr/vol87/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Volume 87 Winter 2003 Number 2 "THIS NEW AND BEAUTIFUL ORGANISM": THE EVOLUTION OF AMERICAN FEDERALISM IN THREE STATE SUPREME COURTS JOSEPH A. RANNEY* The integrity of the union has been tried. The integrity of the states is on trial. Much rests upon the moderation and forbearance of the federal courts; as much perhaps upon the firmness of the state courts, refusing to abdicate state authority, in state matters, to assumption of federal jurisdiction. We will faithfully try to do our part. -Chief Justice Edward Ryan (Wisconsin), 1876' This new and beautiful organism is yet in the course of practical development, which may soon prove whether its fundamental equilibrium of local and national power is in most danger of disturbance from the centrifugal tendencies of the States, or the centripetal attractions of the central government. -Chief Justice George Robertson (Kentucky), 18652 I. INTRODUCTION The relationship between the state and federal governments has been a regular subject of legal and political controversy since the American Revolution.3 * B.A., University of Chicago; J.D., Yale Law School; Attorney, DeWitt Ross & Stevens S.C., Madison, Wisconsin; Adjunct Professor, Marquette Law School. 1. State ex rel. Drake v. Doyle, 40 Wis. 175, 217 (1876), rev'd sub noma.Doyle v. Cont'l Ins. Co., 94 U.S. 535 (1876). 2. Griswold v. Hepburn, 63 Ky. (2 Duv.) 20, 23 (1865), rev 'd in part and aff'd in part, 75 U.S. (8 Wall.) 603 (1870), overruled by Second Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871); see infra note 198. 3. See, e.g., WALTER H. BENNETT, AMERICAN THEORIES OF FEDERALISM passim (1964); FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776-1876 passim MARQUETTE LA W REVIEW [87:253 Historians and jurists have devoted substantial attention to the debates between federalists and anti-federalists over the creation and ratification of the United States Constitution,4 the conflict between the Jackson administration and South Carolina over that state's attempt to "nullify" a federal tariff law in 1832, 5 and the role that the states' rights doctrine played in the chain of events leading to the Civil War. 6 Studies of Southern resistance to federal desegregation efforts during the mid-twentieth century7 and of recent decisions of the Rehnquist Court, arguably favoring the states against8 Congress, have triggered renewed interest in the dilemmas of federalism. It is a truism that federalism underwent a fundamental change during and after the Civil War, that Americans developed a heightened sense of national union, and that federal power expanded dramatically at the expense of the states. 9 But there are surprisingly few studies of the legal and psychological mechanisms that facilitated that transition, particularly at the state level.' ° Did state supreme courts actively resist federal expansion before, during, and after the Civil War era, or did they cooperate with federal lawmakers and judges? Have state courts led the way in fostering states' rights sentiment, or have they acted as a check on such sentiment? This Article makes a beginning attempt to address these questions by comparing judicial approaches to federalism in three states: Wisconsin, Georgia, and Kentucky. These states were selected as exemplars of the three sections involved in the Civil War (the North, the South, and the border slave states), and one might predict they would illustrate the entire spectrum of (2000). 4. See generally I FEDERALISTS AND ANTIFEDERALISTS: THE DEBATE OVER THE RATIFICATION OF THE CONSTITUTION (John P. Kaminski & Richard Leffier eds., 2d ed. 1998); THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed., 1981). For a compilation of anti-federalist writings, see generally the seven-volume set THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed., 1981). 5. See ROBERT V. REMINI, THE LIFE OF ANDREW JACKSON 233-51 (1987). 6. See 6 JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 229-49 (1988). 7. See I I NUMAN V. BARTLEY, A HISTORY OF THE SOUTH: THE NEW SOUTH, 1945-1980, at 159-60 (Wendell H. Stephenson & E. Merton Coulter eds., 1995). 8. See, e.g., McDONALD, supra note 3, at 230-33; Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429 (2002); Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1 (2003). 9. 6 MCPHERSON, supra note 6, at 323-25, 442-48, 859-62. 10. One preeminent modem legal historian, Morton Hurwitz, stated in 1977 that American legal history could be divided into three periods: the period before 1860, the decade of 1860-1870, and the period since 1870. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at vii-viii (1992). Horwitz has written books about the prewar period and the period since the war, but no one has yet written a comprehensive legal history of the Civil War decade. See id; MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977). 2003] EVOLUTION OF FEDERALISM IN THREE STATES states' rights sentiments in America. Wisconsin was a staunch anti-slavery state and generally has been in the mainstream of national economic development." Georgia was one of the first states to secede and one of the first to overthrow federal Reconstruction efforts after the war; it did not join the economic mainstream until the mid-twentieth century. 12 Kentucky falls between these two states: It had close cultural and economic ties to both the North and South before and after the Civil War, but despite resentment of wartime Union occupation and a growing realization that the war would mean3 the end of slavery, the state remained loyal to the Union throughout the war.' The Article begins by examining the early evolution of federalism in each state. Kentucky and Georgia experienced several episodes of near open rebellion against the federal government before the Civil War. In 1798, Kentucky led a protest against the federal Alien and Sedition Acts, and in the early 1820s, it protested and resisted a Supreme Court decision that jeopardized the land holdings of many of its citizens. 14 Georgia's resistance to an adverse 1792 Supreme Court land title decision led to a constitutional amendment limiting federal power, and in the early 1830s, the state successfully ignored several Supreme Court decisions that impeded its Indian removal policy.' 5 But the Kentucky and Georgia Supreme Courts, particularly Kentucky's, acted as moderating forces throughout the prewar period. Wisconsin, like many Northern states, experienced a wave of anti- federalist sentiment in reaction to the Fugitive Slave Act of 1850, but Wisconsin was the only state whose supreme court 6led a revolt against the federal law rather than trying to moderate opposition.' The Article next examines the effect that war and Reconstruction had on federalist sentiment in each state and the role each state's supreme court played in shaping such sentiment. Strikingly, the Wisconsin court's anti- federalist streak did not end when the state's cause prevailed in the war. During the late 1860s and early 1870s, a divided court criticized and attempted to invalidate several federal removal laws that it viewed as a threat 11. See ROBERT C. NESBIT & WILLIAM F. THOMPSON, WISCONSIN: A HISTORY 235-46, 267- 79, 313-35, 499-523 (2d ed. 1989). 12. See ALAN CONWAY, THE RECONSTRUCTION OF GEORGIA passim (1966). 13. See E. MERTON COULTER, THE CIVIL WAR AND READJUSTMENT IN KENTUCKY passim (1926). 14. See infra notes 28-40 and accompanying text. For the sake of economy of expression, the United States Supreme Court is referred to in this Article as "the Supreme Court" or "the Federal Supreme Court"; references to state supreme courts include the name of the state in question unless the identity of the state is clear from the context. 15. See infra notes 84-95 and accompanying text. 16. See infra notes 63-83 and accompanying text. MARQUETTE LA W REVIEW [87:253 to state sovereignty.' 7 The challenges failed, but they were an important part of the postwar transition to federal supremacy: Indeed, Wisconsin may fairly be said to have sealed that supremacy.18 The Kentucky Supreme Court bitterly protested federal wartime laws affecting the slave system, the civil liberties of white Kentuckians, and the postwar civil rights laws that expanded the influence of federal courts, but for the most part, the Kentucky court continued its prewar tradition of moderation as to federalism. 19 During its short life, Georgia's Reconstruction-era Supreme Court urged acceptance of federal supremacy as a permanent legal principle; successor courts agreed, and judicial deference to federalism was one of the Reconstruction court's few permanent legacies. 20 After the end of Reconstruction, resistance to federalism died out in all three states, except for a minor controversy over anti-removal provisions in state corporation laws that was resolved in favor of federalism in 1921.21 II.
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